EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD846/2015
CLAIM(S) OF:
Kesaven Poosi
(claimant)
Against
Smyths Toys / Smyths Toys Hq / Smyths Toys Holdings
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr. A. O'Mara
Mr T. Brady
heard this claim at Dublin on 9th June 2016 and 27th July 2016 and 18th January 2017
Representation:
_______________
Claimant(s) : Peter Mullen B.L. instructed by Mr. Derek Stewart, Stewart & Ino Solicitors, 12 Parliament Street, Temple Bar, Dublin 2
Respondent(s) : Alasdair Purdy, Purdy Fitzgerald, Solicitors, Block 1, G.F.S.C., Moneenageisha Road, Galway
The determination of the Tribunal was as follows:
The case before the Tribunal was one of constructive dismissal.
Summary of evidence
Claimant’s case
The respondent company is a large toy store with various branches nationwide. The claimant commenced his employment on 15th March 2006 and worked his way up within the company to become a Store Manager. Giving evidence the claimant stated that while working in the store in Dundalk from 2013 he regularly had to work one hundred hours per week over six days and for his day off it was not unusual for him to have to arrange cover by ringing other Store Managers. He had informed his Operational Manager of pressure of work on a number of occasions. Matters came to a head in October 2014 when on 13th October 2014 the claimant was told by his Operations Manager over the phone to reduce the hours of manpower in the store. This was just after a shop promotion when the store needed to be returned to its normal operational state. Also at this time of year the ‘guidelines’ for the Christmas period had to be taken into account.
On 14th October 2014 the Operations Manager visited the store and told the claimant to focus on packing the store to the maximum. The claimant explained to the Operations Manager that there were more important jobs to be carried out first, for instance the ‘guideline’ for the Christmas period as well as deliveries to be cleared. The claimant told RC they were struggling with the amount of staff hours allocated to the store. The Operations Manager told the claimant that if the Senior Operational Manager came into the store, the claimant would be collecting his P45.
On 20th October 2014 the Senior Operations Manager rang the claimant and asked him why he had been overspending hours. The claimant explained to the Tribunal that they were struggling to get the store finished with the ‘guidelines’ following the big promotions in September. The Senior Operations Manager told the claimant that if he was not prepared to listen, his store would be taken away from him. That same day the claimant rang his Operations Manager to enquire who he would be sending to run the “Night Pack” crew. The Night Pack was the re-stocking of the store that took place after the store closed. It was stated that this was particularly onerous around Christmas time though the Respondent contended that the Night Pack would last only until 1 or 2 in the morning.
The claimant explained to the Tribunal that he had already told the Operations Manager that he would not be doing the night pack and that they had previously agreed that someone else would be brought in for this work. The Operations Manager told the claimant that he would not be ‘spoon feeding’ him.
At the end of October 2014 the Operations Manager came for a store visit. The claimant told him that he was not happy having to run the night pack. After a discussion in the office, the claimant was still left to run the night pack. Later on in the office, the Operations Manager told the claimant that he was starting an investigation and that HR would be carrying out an audit in relation to HR files as they were not up to date. The claimant explained that the files were ‘being worked on’. The claimant was told by the Operations Manager that a Samsung tablet had gone missing. The claimant told the Operations Manager that he had investigated the matter and the Operations Managers told the claimant that he was not doing his job correctly. The claimant asked the Operations Manager why he was putting so much pressure on him considering he had been running the store on his own since last June with no support. The claimant then stated he was going home as he could not take the mental stress.
The Operations Manager asked the claimant ‘so are you resigning’ and the claimant said ‘I am not resigning’ and he then left the store.
The claimant indicated that while he did not make a formal complaint against the respondent he had asked his Operations Manager why he kept putting so much pressure on him. The Claimant said that the HR department had asked him ‘how do you do twenty two hours in a day’. The claimant stated that while he was out sick for three months he still wanted to resume duty. He was not paid while he was on sick leave as this is at the discretion of the company. He said he was contacted by the respondent on a number of occasions while on sick leave, including a letter in relation to a disciplinary meeting.
In cross-examination, when asked why he did not refer to an investigation meeting which took place on 3rd October 2014, the claimant stated that that related to a member of staff using the fork lift and so was unrelated to his case with the respondent. When asked about a meeting on 17th October 2014, the claimant could not recollect a meeting on this date. The claimant confirmed he re-collected a meeting of 28th October 2014 in relation to a case regarding missing Samsung tablets. The reason the claimant had not reported the missing tablets was because he had been so busy that it slipped his mind, and the fact that his investigation of the matter was not completely finished. It was this meeting that lead to the claimant leaving the store early that day. The claimant sent an e-mail on 30th October to say he was on certified sick leave due to stress. This cert covered the period from 30th October to 12th November, 2014. A second cert was sent in covering the period 13th November until 12th December 2014.
The claimant confirmed he received a letter from the respondent dated 14th November inviting him to a welfare meeting to be held on 25th November in a hotel in Dundalk. The reason he cancelled on 24th November and asked for it to be re-arranged was because he had initially intended to go to but then he felt too pressured and felt he could not go. He asked for the meeting to be held between 8th and 10th December. The respondent replied stating that those suggested dates were not suitable and e-mailed the claimant on 24th November asking him make contact to re-arrange. The reason the claimant did not make contact was because he felt very down after reading the e-mail he had received. The claimant confirmed that he did not reply to a further e-mail dated 28th November 2014 and a letter dated 4th December. When asked why no cert was sent in after the period 12th December, the claimant said he had sent it. Before the Tribunal, it transpired that the claimant’s solicitor had omitted to forward it to the respondent and this was subsequently sent on 23rd December 2014. Although he was overspending on hours, he explained to the respondent that this was necessary to keep up with the day to day work in-store.
The claimant did not accept that he had proper staffing support for the day to day running of the store. The claimant denied that he left because the respondent had begun an investigation in relation to use of the fork lift, a bullying accusation against him and missing Samsung tablets.
The claimant accepted he did not initiate the grievance procedure but had informed the Operations Manager. He felt there was no point in going to the Senior Operations Manager as his life “would have been hell” if he did. He decided to walk away.
He could not consider returning to work because of the way he was treated during his sick leave.
The claimant gave evidence of loss and his efforts to mitigate his loss.
Respondent’s case
The HR Manager told the Tribunal that she visited the store on 3rd October, 2014 in relation to two allegations against the claimant – first, that he had allegedly allowed unauthorised use of fork lift truck and, secondly, an allegation of bullying against him. She returned on 17th October to finish her investigation. She concluded that there were two serious breaches of the Health and Safety policy in relation to the fork lift usage. The claimant had left the company before she had presented her findings to the Operations Manager. The reason the HR Manager could not meet the claimant on his suggested dates was because she had consultants working with her during this period. The medical assessment was not suggested to put pressure on the claimant but to understand his issues as they had had very little response from him.
The Operations Manager visited the store on 28th October 2014 on his weekly visit. When he asked the claimant if he had any issues, the claimant told him he had an issue with the night pack operation. The Operations Manager told the claimant he had full responsibility for the night pack and the running of the store. It transpired that the claimant had to carry out night pack as staff support provided to the claimant were not in a position to work late. The Operations Manager stated that when the claimant was questioned as to his handling of the missing tablets he said “that’s it I quit”. The Operations Manager had no contact with the claimant after 28th October 2014.
With regard to the missing Samsung tablets, RC stated it was not acceptable that the claimant had not followed procedure in that regular checks on the inventory were not carried out and the claimant admitted not knowing when the tablets had gone missing.
The Operations Manager indicated that no issues had been raised by the claimant regarding more help needed.
In cross-examination, the Operations Manager indicated that he did not know the claimant’s hours of work, as the claimant was responsible for his own hours and the running of the store. The night pack work was carried out in the last quarter of the year and the claimant’s branch would have to work until about 1am or 2am during this time.
The claimant’s overspending of hours, wereby his staff worked longer than budgeted, meant that he was not managing the store correctly, said the Operations Manager.
The Senior Operations Manager told the Tribunal that he had a telephone conversation with the claimant on 20th October 2014. He told the claimant that he had to stop overspending on hours. He denied that he told the claimant he would be removed from the store. The claimant never raised any issues with him. He said the records showed that the claimant was getting the support needed.
Determination
There was a divergence of evidence between the parties. It is uncontroverted that the Claimant was reprimanded by superiors for overspending hours. However, it is not admitted by the Respondent that it knew of the nature or extent of the Claimant’s grievances, and in particular the stress that the Claimant was under.
This stress may or may not have explained the alleged actions of the Claimant that were under investigation by the Respondent, namely the authorisation of inappropriate use of the fork-lift truck and the inadequate monitoring of the stock of high-value tablets.
In relation to the meeting of 28 October, again, there is a divergence in the evidence given by the two parties, and how this meeting ended. However, the Tribunal does not find it necessary to resolve this divergence in the evidence given what transpired after the Claimant left work on 28 October 2014.
This case is a constructive dismissal. The Claimant must show, therefore, that his position in the Respondent was such that it was reasonable in all the circumstances that he resign. Under Section (1) of the Unfair Dismissals Act 1977 as amended, the definition for “dismissal” includes at paragraph (b): “ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”
As highlighted by the Labour Court in Paris Bakery & Pastry Ltd. V. Mrzjak DWT 68/2014, the first part of this definition essentially deals with a situation where there has been a fundamental breach of the contract of employment by the employer. Not every breach of contract will give rise to such a repudiatory breach. The second part of the definition deals with a position where the employer conducts their affairs so unreasonably in relation to the employee that the employee cannot fairly be expected to put up with it any longer. A breach of contract that may not satisfy the first part of the definition may still be such that it satisfies the second part of the definition, and results in the employee being constructively dismissed.
In this case, Mr. Poosi was a relatively senior employee who had first begun worked for the Respondent in 2006, some 8 years previously. He directly controlled his working environment, being a Store Manager, and more importantly, he was in regular contact with his superiors. While it may be that this does not allow an employer to act unreasonably, it does mean that the Tribunal must take all of these facts into account in deciding whether the Claimant himself acted reasonably – he is expected to use appropriate employment structures to air his grievances, and is expected to engage reasonably with his employer in relation to such grievances.
Contact after 28 October 2014
By email dated 30 October, Mr. Poosi forwarded a medical certificate for 2 weeks’ off work due to stress at work. He stated that he had been under pressure at work since June and had asked for help and was never listened to by “operations.” He stated that he would contact the respondent again once he was clear to resume his duty and discuss the issue with them. He forwarded a second certificate on 12 November covering the period up to 12 December 2014.
By letter dated 14 November 2014, the HR Manager Ms. Donohue wrote to Mr. Poosi, acknowledging his medical certificate and stating that she was concerned with the reasons stated on the medical certificates as they cited “depressive reaction due to workplace stress” and what she termed as the “verbal resignation” by Mr. Poosi at the meeting with the Operations Manager on 28 October 2014. Ms. Donohue asked Mr. Poosi to attend a welfare meeting to discuss these matters on 25 November 2014, stating that he could re-arrange this, and stated that he could bring someone with him.
Mr. Poosi replied on 24 November 2014 stating that he could not attend on that day but could attend between the 8 and 10 December at a location in Drogheda. Ms. Donoghue emailed again on 24 November, stating that she was disappointed by the short notice, asking that he provide an explanation for non-attendance, and stating that she could not meet him on the dates he suggested and asking that he telephone her to arrange a suitable meeting time. She again emailed on 28 November noting that he had not responded and asking him to reply. By email dated 1 December 2015, Mr. Poosi’s solicitors wrote to Mr. Donohue and enquired about his pay, stating that they would revert in relation to all other matters in early course.
By letter dated 4 December 2014, Ms. Donohue wrote again to Mr. Poosi directly and noted that he had not yet contacted her to re-arrange the welfare meeting, and asked that he attend a Medmark medical examination on 15 December because of the length of absence from work and the nature of the reasons stated on the medical certificates, and that he should reply before 9 December. There was no reply to this letter.
By email dated 17 December 2014, the the Operations Manager, Mr. Ryan Campbell wrote to Mr. Poosi and stated that as Mr. Poosi had failed to respond to two requests to re-schedule a welfare meeting dated 24 and 28 November 2014, as medical certificates to cover Mr. Poosi’s absence from December 13th had not been sent to the Respondent meaning that he was absent from work without authorisation, and as Mr. Poosi had failed to attend a Medmark medical examination which had been fixed for December 16th without explanation, Mr. Poosi was requested to attend a disciplinary meeting scheduled 29 December 2014. That letter was also sent by email dated 22 December 2014.
Claimant considering himself constructively dismissed
In response, Mr. Poosi’s firm of solicitors wrote by email dated 23 December 2014 that due to oversight the relevant medical certificate had not been forwarded, and was enclosed. It was disputed that Mr. Poosi had “verbally resigned” in the meeting of 28 October 2014. It was stated that the proper procedures had not been followed by the Respondent in line with their own company procedures.
It was further stated that the legal representatives were not able to “complete their instructions” from Mr. Poosi, but the letter went on to point out that Mr. Poosi had been subjected to a number of procedures and asked to attend meetings when he was absent because of illness. The email concluded by stating that the treatment of Mr. Poosi was such to amount to Mr. Poosi being “in effect constructively dismissed. Thus there will be no need for you to decide whether to terminate our client’s employment as the Company has, by its conduct acts failures and omissions left our client with no option but to see himself as constructively dismissed ” and it asked that all further correspondence should be sent only to his solicitor.
By response the Respondent wrote to the solicitor for Mr. Poosi on 6 January 2015 stating that “the company is disappointed that Mr. Poosi has chosen to terminate his employment with us in such a manner. We feel that this course of action is certainly premature and unnecessary.” The letter went on to address a number of issues and recited that Mr. Poosi had never raised a formal grievance; that he had not kept his medical certificates up to date; that the staff handbook required that that when an employee was on leave that they attend meetings and that he had failed to reschedule the welfare meeting that he had requested be postponed.
That letter concluded that “notwithstanding the above issues, the Company is willing to afford Mr. Poosi some time in order to reflect on his decision to resign from the Company.” It requested that he contact the Operations Manager by 16 January 2015 if he wished to continue in employment, and that if he failed to do so, the Respondent would assume that he was no longer interested in his position as Store Manager and would forward his P45.
By email dated 27 January 2014, Mr. Poosi’s solicitors confirmed that he considered himself constructively dismissed.
Conclusion
The Tribunal considers that whatever the position of the parties in the meeting of 28 October 2014, Mr. Poosi was not constructively dismissed. If there was a breach of the contract by the Respondent in failing to support Mr. Poosi adequately when in his role, or in the contact with him after he went on sick leave, it was not of such a fundamental nature that he was entitled to terminate his employment. The fact of the matter was that he had failed to forward a medical certificate to cover his absence form work from 12 December 2014. It cannot be seen that the actions of the Respondent in calling Mr. Poosi to a disciplinary hearing in light of this failure together with his failure to maintain contact with the Respondent in respect of the welfare meeting and to attend an independent medical examination, was a repudiatory breach of the contract of employment by the Respondent.
In relation to the other limb of the contract, the Tribunal does not consider that it was or would have been reasonable for Mr. Poosi to terminate the contract of employment without giving prior notice to the employer. The Respondent may have been less than reasonable in expecting Mr. Poosi to interact and meet when he was on sick leave. However, such unreasonableness is not of such a fundamental nature that it makes it reasonable for Mr. Poosi to resign.
Mr. Poosi could have activated the Respondent’s grievance procedures and continued to communicate with the Respondent through his solicitors while on sick leave.
In reaching this conclusion, the Tribunal in particular again notes that his medical certificates were not kept up to date, and the Tribunal also weighs heavily the fact that Mr. Poosi was a relatively senior employee with long service and a good knowledge of the internal procedures of the Respondent, and had never raised a formal grievance with the Respondent before the 28 October 2014. The Tribunal also considers that the Respondent acted reasonably in giving an opportunity to Mr. Poosi to change his mind after his solicitor stated that he considered himself constructively dismissed, explaining the reasons for the Respondent’s actions by letter of 6 January 2014.
Therefore, the Claimant fails in his claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)